Zoning; Whether Zoning Commission Could Rely on its Historical Interpretation
of Regulation Setting Forth Maximum Density Requirements for Certain
Residential Lots; Whether Regulation Should Have Been Interpreted in Favor of
Landowners Directly Affected By It. Mary Markow and Eric R. Secor, Jr.,
applied to the Avon planning and zoning commission for permission to subdivide
their four-acre parcel of property into two two-acre lots. The parcel was
located in a RU-2A zone, and according to section IV, 4.5 of the town's zoning
regulations, any parcel located in a RU-2A zone that is developed for
residential use must have a maximum density of .3 single family units per
acre. In approving the subdivision application, the commission relied on a
traditional practice of going back to the "parent" parcel within
which the property to be re-subdivided existed in 1957, when the subdivision
regulations were adopted. In 1957, the subject property was part of a lot
known as the "Alsop Homestead." Thirty-four acres of the Alsop
Homestead were located in Avon, and the commission considered this acreage as
the parent parcel. The commission then applied the density formula of .3 units
per acre, taking into consideration the entire parent parcel, and concluded
that the total number of lots that could be created from the acreage would be
thirty-four times .3, or 10.2 lots. It further determined that since the
parent parcel had already been subdivided into eight parcels, two more lots
could be created from the parent parcel. Hence, it essentially concluded that
the excess acreage of the remaining lots in the parent parcel permitted the re-subdivision
of the subject property. Several neighboring property owners appealed from the
commission's ruling, arguing that section IV, 4.5 requires a minimum of 3.33
acres for a single family dwelling. In sustaining the neighbors' appeal, the
trial court found that the commission improperly relied on its historical
practice of going back to the parent parcel in determining whether the proposed
subdivision application satisfied the density requirements of section IV, 4.5.
It determined that nothing in the written zoning or subdivision regulations supported
the commission's conclusion that the term "parcel" set forth in
section IV, 4.5 refers to a parent parcel. It also determined that "prospective
or present owners of nearby lots should not be required to rely on a historical
formula for calculating density, not set forth in some regulation available to
the public and not ascertainable without some esoteric search into historic
commission procedures, which would not yield any written authority, but only
the oral testimony of commission staff or members." The trial court
therefore voided the commission's ruling. Markow and Secor now appeal from the
judgment of the trial court, arguing that the court improperly concluded that
the commission could not rely on its historical interpretation of the word
"parcel" contained in section IV, 4.5 in determining whether their
subdivision application satisfied the requisite density requirements. The
commission has also appealed and raises a similar argument. The commission
further argues that the court should have construed the arguably vague density
regulation in favor of Markow and Secor rather than deferring to the interests
of their neighbors.